In a lengthy opinion today, the D.C. Circuit Court of Appeals denied our request for rehearing of our Origination Clause challenge to Obamacare. On behalf of our client, Matt Sissel, we argue that if the Individual Mandate is a tax, as the Supreme Court said it was in NFIB v. Sebelius, then it’s still unconstitutional, because it originated in the Senate and not in the House, as the Constitution requires. Last summer, the court ruled against us, declaring that since Obamacare isn’t a “bill for raising revenue,” the Origination Clause doesn’t apply. Now that the entire D.C. Circuit has decided not to reconsider, our next step is to ask the Supreme Court to take the case.
We knew going in that this case would ultimately end up on the Supreme Court’s doorstep, and now it’s time. PLF is proud to be one of the most active organizations in the country opposing Obamacare, and you can learn more about our litigation on the issue here.
We’ll have analysis and commentary on today’s ruling in future blog posts. For now, the importance of this case was emphasized in Judge Kavanaugh’s opinion urging his colleagues to reconsider. The opinion, he said, “incorrectly read[s] the Supreme Court precedents on the Origination Clause,” and “blows [one] narrow exception up into a giant new exemption from the Origination Clause, even for obviously revenue-raising bills such as the Affordable Care Act, which raises $473 billion in revenue.” The opinion creates a “new exempt[ion] [for] a substantial swath of tax legislation” and “degrades the House’s origination authority in a way contrary to the Constitution’s text and history.” Most importantly, the opinion threatens freedom: “The Origination Clause was one of the many finely tuned mechanisms the Framers adopted to separate power within the new national government,” write the four dissenters, “so as to avoid the dangers of concentrated power and thereby protect individual liberty.”
Update: More here from blogging law professor Rick Hasen.